The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation

Abstract

In the past two decades, business groups and their political allies have often criticized broad civil rights remedies—particularly the availability of money damages—as encouraging abusive and extortionate litigation practices. In its decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, the U.S. Supreme Court seemed to heed those arguments when it rejected the catalyst theory for recovery of statutory attorneys' fees. As many commentators have pointed out, these limits on remedies are likely to undermine the enforcement of civil rights laws. That criticism is correct as far as it goes, but it ignores an important part of the story. Limitations on civil rights remedies do not simply reduce the number of cases that get brought. They also change the character of the cases that get brought. In particular, limitations on remedies may themselves create an incentive for conduct that appears to defendants as abusive. Civil rights advocates may even confront a vicious cycle: Concern with abusive litigation motivates the adoption of limitations on remedies; those limitations lead plaintiffs' lawyers to engage in litigation conduct that appears even more abusive; the newly energized perception of abuse motivates adoption of even more limitations; and so on. This Article illustrates these points by examining an important ongoing issue: the controversy over serial Americans with Disabilities Act (ADA) public accommodations litigation. The ADA's public accommodations title is massively underenforced, and the limitations on remedies for violations of that title are the most likely culprit. But the litigation conduct that courts, members of the U.S. Congress, and business groups have labeled abusive also grows out of the statute's remedial limitations.